In re Joseph S.

Filed 9/19/07 In re Joseph S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James T. Warren, Judge. Affirmed.

Douglas G. Benedon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court committed minor to the Department of Juvenile Justice (DJJ)^[1]after minor repeatedly violated his wardship conditions at less secure facilities. Minor contends the court abused its discretion by committing him to DJJ. We affirm.

FACTS

At age 12, minor admitted receiving stolen property (Pen. Code, 496, subd. (a)) and committing attempted burglary (Pen. Code, 664, 459) on or about October 1, 2002. Minor was granted informal probation. (Welf. & Inst. Code, 654.2.)

At age 13, minor admitted committing burglary (Pen. Code, 459) on or about January 8, 2003.^[2] The court revoked minors informal probation and reinstated proceedings on the October 2002 petition. The court granted the Peoples motion to dismiss the charge for attempted burglary (Pen. Code, 664, 459) from the October 2002 petition. The court set minors maximum confinement time for the October 2002 and January 2003 crimes at six years eight months. Minor was adjudged a ward of the court and placed at Alpha Connection Anoka Ranch.

On November 9, 2004, minor ran away from the ranch, but returned approximately 11 hours later. On January 18, 2005, minor left the ranch property twice without permission. On January 30, 2005, minor again left the ranch grounds, but returned. On February 1, 2005, he was transferred to juvenile hall. The probation department filed a Welfare and Institutions Code section 777 petition alleging that minor was not adjusting to his placement at Alpha Connection Anoka Ranch. The People made a motion to dismiss the probation departments petition, which the court granted.

At age 15, minor admitted committing misdemeanor sexual battery upon a family member (Pen. Code, 243.4, subd. (e)(1)), on or about March 2003. The crime was alleged to have occurred while minor was using a home pass from Alpha Connection Anoka Ranch. Including minors previous offenses, his maximum confinement time was set at 6 years 10 months. Minor was continued a ward of the court and placed at Childrens Therapeutic Communities.

On April 16, 2005, minor ran away from his placement. Minors whereabouts remained unknown until he was discovered at his home by the probation department on May 10, 2005, and taken back into custody. The probation department filed a Welfare and Institutions Code section 777 petition alleging that minor left his court-ordered placement without permission. Minor admitted leaving Childrens Therapeutic Communities without permission, in violation of his wardship conditions. On June 9, 2005, minor was placed at Olivecrest Treatment Center.

On July 15, 2005, the probation department filed a Welfare and Institutions Code section 777 petition alleging minor violated conditions of his wardship by (1) biting two residents; (2) kicking down a door; (3) possessing drug paraphernalia; (4) cutting another resident with a broken piece of glass; and (5) using racist language. Minor admitted the allegations in the petition. Minor was placed at Highlander Children Services Kids First Foundation on September 6, 2005.

On October 31, 2005, the probation department filed a Welfare and Institutions Code section 777 petition requesting a warrant for minor. The petition alleged minor violated his wardship conditions by leaving Highlander Children Services without permission. The court granted the warrant and minor was arrested on November 10, 2005. Minor admitted running away from the placement. On June 5, 2006, minor was placed at the Riverside County Probation Desert Youth Academy.

On December 20, 2006, the probation department filed a Welfare and Institutions Code section 777 petition alleging that minor was not adjusting to the rules and directives of his placement. Specifically, it was alleged that minor (1) refused to participate in physical education class; (2) attempted to send a letter to Southwest Juvenile Hall without it being prescreened by forging staff initials on the back of the letter; (3) struck another cadet; (4) left his bed without permission; (5) stole food from the dining hall; and (6) used profanity toward the staff and another cadet. Minor admitted the allegations.

At the disposition hearing, minors father was present and requested that minor be placed in the Dream Center program. The court found that minors commitment to Dream Center would have to be voluntary because it is not a court-ordered program and is located in Los Angeles County. The court rejected placing minor at Dream Center because it is located outside the courts jurisdiction. Minor was committed to DJJ. Minors maximum confinement time remained fixed at 6 years 10 months.

DISCUSSION

Minor contends the juvenile court abused its discretion by committing him to DJJ because (1) he was 12 and 13 years old at the time of his criminal offenses and his subsequent problems were the result of horseplay rather than criminal activity; (2) he is an unsophisticated boy with serious mental health problems; and (3) the court failed to consider his request for Ricardo M. time.^[3] We disagree.

A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) A DJJ commitment may be based on a pattern of escape from a less secure facility, increasingly serious delinquent behavior, the recommendation of the probation department, or the need for a secure facility. (In re Jose R. (1983) 148 Cal.App.3d 55, 61.) Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

We conclude minors commitment to DJJ was proper based upon his repeated escapes from less secure facilities and the recommendation of his probation officer. Further, we find less restrictive alternatives would be inappropriate because they have been incapable of confining minor so that he may receive the treatment he needs. Accordingly, we also find that being committed to DJJ will likely benefit minor because while he is confined he will be able to receive the treatment he requires, rather than continuing his pattern of running away from less secure facilities.

Minor first argues that he should not have been committed to DJJ because his crimes were committed at the ages of 12 and 13, and because his subsequent problems were the result of horseplay. Minor fails to address the sexual battery conviction that occurred at age 15. Minor also fails to explain how the repeated violations of his wardship conditions qualify as horseplay. Accordingly, we conclude this argument has no merit.

Minors second argument that he has mental health problems, such as attention deficit hyperactivity disorder, dysthymia (chronic depression), and adjustment disorder actually supports the conclusion that he should be committed to DJJ. If minor is at a secure facility, then he will be able to receive the mental health treatment he requires, rather than running away from treatment at less secure facilities.

Minors final argument that the court did not consider his request for Ricardo M. time is also without merit. Minors request for Ricardo M. time, followed by release to his father, was documented in the probation report filed on January 2, 2007. The court stated at minors disposition hearing that it read minors probation report, thereby proving that the court considered minors request.

Further, we find the courts decision not to grant Ricardo M. time followed by minors release to his fathers custody to be reasonable because (1) the court did not have a home study on minors father at the time of the disposition hearing; (2) minors father did not have legal custody of minor; and (3) minors father lived outside the courts jurisdiction.

We conclude that the court did consider minors request and properly chose to not grant Ricardo M. time.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] Formally known as the California Youth Authority. (Gov. Code, 12838, subd. (a), 12838.3; Welf. & Inst. Code, 1710, subd. (a).)

^[2] The petition further alleged that minor possessed a firearm on school grounds on or about January 8, 2003. However, the court did not address that allegation.

^[3]Ricardo M. time refers to a short, indeterminate stay in juvenile hall as a condition of probation, such as was held to be an appropriate condition of probation in a habeas corpus proceeding entitled In re Ricardo M. (1975) 52 Cal.App.3d 744. (In re Demetrus H. (1981) 118 Cal.App.3d 805, 807, fn. 1.)